HomeMy WebLinkAboutResolution 2020-026 Approving Master Conduit AgreementMARANA RESOLUTION NO. 2020-026
RELATING TO PUBLIC WORKS; APPROVING AND AUTHORIZING THE MAYOR
TO EXECUTE A MASTER CONDUIT USE AGREEMENT WITH FIRSTDIGITAL
TELECOM ARIZONA, LLC FOR THE USE OF TOWN -OWNED CONDUIT
WHEREAS the Town of Marana has constructed and is the owner of a conduit
system in the Town comprised of conduit, innerduct, manholes, handholes, vaults, pull
boxes, and support structures needed for the use of the conduit; and
WHEREAS FirstDigital Telecom Arizona, LLC desires to acquire from the Town,
from time -to -time and as the need arises, the right to use certain conduit within
portions of the Town for the purpose of installing its facilities; and
WHEREAS the Mayor and Council of the Town of Marana feel it is in the best
interests of the citizens of Marana to enter into the Master Conduit Use Agreement
addressed by this resolution.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE TOWN OF MARANA, as follows:
Section 1. The Master Conduit Use Agreement between the Town of Marana and
FirstDigital Telecom Arizona, LLC for the use of Town -owned conduit, attached to and
incorporated by this reference in this resolution as Exhibit A, is hereby approved, and
the Mayor is authorized to execute it for and on behalf of the Town of Marana.
Section 2. The Town Manager and staff are hereby directed and authorized to
undertake all other and further tasks required or beneficial to carry out the terms,
obligations, conditions and objectives of the agreement, including the approval of
future Conduit Requests by the Technology Services Director and the Town Engineer,
or their respective designees, as set forth in the agreement.
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MASTER CONDUIT USE AGREEMENT
This MASTER CONDUIT USE AGREEMENT (this "Agreement") is entered into by and
between the TOWN OF MARANA, an Arizona municipal corporation (the "Town"), and
FIRSTDIGITAL TELECOM ARIZONA, LLC, a Utah limited liability company ("User"). Town
and User are sometimes collectively referred to as the "Parties," either of which is
sometimes individually referred to as a "Party."
Recitals
A. The Town has constructed and is the owner, in whole or in part, of an Intelligent
Transportation Systems (ITS) conduit system constructed for the purposes of
telecommunications connectivity in Marana, Arizona comprised of conduit, innerduct,
manholes, handholes, vaults, pull boxes, and support structures needed for the use of the
ITS conduit.
B. User desires to acquire from the Town, from time -to -time and as the need arises,
the right to use certain ITS conduit within portions of the Town for the purpose of
installing User facilities, which includes but is not limited to fiber optic cables, innerduct,
tracer wires, equipment and associated hardware, owned and/or utilized by User, and
the Town desires to allow User to use such certain ITS conduit in the Town's system.
Agreement
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated
into this Agreement as though fully restated here, and the mutual covenants set forth in
this Agreement, the Parties hereby agree as follows:
1. Definitions. The following definitions shall apply to this Agreement:
a. "Additional Conduit" means Conduit which User is granted a right to use after
the Effective Date of this Agreement and which is made subject to this Agreement
pursuant to the execution of one or more Conduit Request(s) (as defined in
subparagraph d below). Upon the execution of a Conduit Request, the term
"Additional Conduit" shall be included in the definition of "Conduit" for all purposes
under this Agreement.
b. "Connected Points" means the beginning and ending points of the Conduit as
more specifically described in a Conduit Request.
c. "Conduit" means the system of four -inch Intelligent Transportation Systems
(ITS) conduit, innerducts, shared manholes, handholes, vaults, pull boxes, support
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structures, and assist points needed for the use of the ITS conduit, together with
certain other associated facilities owned or operated by the Town that provide
communications continuity between the Connected Points and to which User is
granted use of from the Town pursuant to this Agreement, as it may be amended from
time to time. For the purposes of this Agreement, "Conduit" does not include
Town -owned conduit installed for traffic signal operations and street lighting.
d. "Conduit Request" means an executed supplement to this Agreement, a form
of which. is attached hereto and incorporated herein by this reference as Exhibit A.
e. "Equipment" means the telecommunications equipment owned or used by User
to generate signals across fiber optic cable, or copper cables, as the case may be,
including tracer wires, equipment, and associated hardware.
f. "Facilities" means fiber optic or copper cables and associated hardware and
conduit.
g. "Fiber Cable" means the fiber optic cable sheath installed in the Conduit and
owned by User.
h. "Innerduct" means a system of three 1.25 -inch smaller conduit (or tubes) used
to subdivide larger conduit ducts for the placement of optical fiber cables in the
underground conduit system.
i. "Manhole" means a below ground level enclosure entered through a hole on the
surface covered with a cast iron, cast aluminum, steel, concrete or other cover, which
personnel may enter and use for the purpose of installing, operating, and maintaining
facilities associated with a fiber optic communications system. As used in this
Agreement, the term "Manhole" refers to manhole structures owned or operated by
the Town and which are components of the Conduit.
j. "Pull Box" means a buried No. 7 pre -cast concrete box with an extension and a
removable cover as identified in Pima Association of Governments Standard Details,
used to facilitate the pulling of cables.
k. "Route" means the physical path of the Conduit required to provide continuity
between the Connected Points, as more specifically described in each Conduit
Request.
1. "Splice" means the splicing or terminating of fiber optic cables, copper cables, or
both.
m. "Vault" means a pre -cast concrete buried Arizona Department of
Transportation No. 9 pull box with a lid for pulling and terminating fiber optic cable
runs.
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2. Right to use, use of Conduit; inclusion of Additional Conduit; termination of Conduit
Requests.
a. The Town hereby grants to User a non-exclusive right to access and use the
Conduit, Connected Points, and Manholes, including permission to install Fiber Cable
in the Conduit, to interconnect User's own conduit network with the Conduit, and to
terminate or Splice Fiber Cable at the Connected Points, and to provide all necessary
maintenance and repairs to the Conduit, subject to the conditions set forth in this
Agreement. User may interconnect its conduit to the Manholes or Conduit to facilitate
the Splices. All work is to be performed by User at User's sole cost and expense.
b. User shall mark with a stamp or medallion (or other form of identification) each
Town pull box cover where User has placed Fiber Cable.
c. If User requires the use of Conduit that is not currently populated with three
1.25 -inch Innerducts, User shall be required to install a system of three 1.25 -inch
Innerducts in the empty Conduit prior to use. User shall notify the Town of empty
Innerducts installed by but not being used by User and those empty Innerducts shall
be made available for Town use.
d. If User requires the use of Conduit that is populated with Town fiber optic cable
but no Innerduct, User shall install Innerduct and maintain Town fiber optic cable.
e. No Splices shall be made in Town -owned Pull Boxes. Splices may be made in
Vaults.
f. User shall be responsible for repairing any damage that User causes to
Town -owned Conduit, Pull Boxes, Vaults or fiber optic cable.
g. The right to use Additional Conduit shall be accomplished through a separate
and independent Conduit Request. User may request the inclusion of Additional
Conduit by executing a Conduit Request, in the form attached hereto as Exhibit A.
Approval of a Conduit Request, when deemed to be technically and operationally
feasible in the sole reasonable discretion of the Town, shall not be unreasonably
withheld, conditioned or delayed by the Town. The Town shall not unreasonably
condition or delay execution of a Conduit Request. The Town shall review and act on
Conduit Requests within 15 Town business days of receipt of the request. Subject to
the provisions of paragraph 7 below, User shall be solely responsible for costs
associated with use of Additional Conduit. Upon execution, the Conduit Request will
be incorporated into this Agreement and fully subject to the terms and conditions of
this Agreement.
h. Each Conduit Request executed pursuant to this Agreement shall continue in
effect until terminated by User as set forth in this Agreement, or until expiration of
the Term. User may terminate a Conduit Request, or Route within a Conduit Request,
at any time upon 90 days' prior written notice to the Town. Upon termination or
expiration of a Conduit Request, or a Route within a Conduit Request, the right to use
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granted by that Conduit Request shall immediately terminate, all rights granted to
User for use of the Conduit shall terminate, and neither Party shall owe the other any
further duties or consideration. User shall remove all User Property from the Conduit
as prescribed in paragraph 12 of this Agreement, unless the Town gives User
permission to abandon any Facility or Equipment laid, directly constructed, operated,
or maintained.
i. Any Conduit Request must be jointly approved by the Town's Technology
Services Director and the Town Engineer, or their respective designees.
j. Conduit Request #1 is attached to this Agreement and incorporated herein by
this reference as Exhibit B.
3. Consideration and taxes. User shall pay the Town a fee for the right to use granted
under each Conduit Request pursuant to this Agreement as follows:
a. The fee shall be calculated by multiplying the total aggregate length of the
Conduit, in feet, by the applicable per foot rate, per year and shall be paid on an
annual basis.
b. The Conduit use rate for the Initial Term of this Agreement is $0.40 per foot, per
year.
c. The payment period for each Conduit Request shall begin on the applicable
Conduit Request Acceptance Date (as defined in paragraph 7 below) and conclude
upon termination of the Conduit Request for the Conduit in use. The fee shall be due
and payable by User annually on July 30 of each year for the fiscal year in which the
payment is received (July - June Town fiscal year) and will be prorated for any
conduit Request placed during that fiscal year, payable 30 days after the applicable
Conduit Request Acceptance Date.
d. Any undisputed amounts not paid by User when due as described in this
Agreement shall bear interest at the rate of 1.5%, or the highest lawful rate, whichever
is less, from the date due until paid. If it is determined that User owes a disputed
amount, the amount shall accrue interest from the date the amount was originally
due.
e. Fee payments shall be remitted to the following address:
Town of Marana
Attn: Finance Department
11555 W. Civic Center Drive
Marana, AZ 85653
f. All charges for Conduit are net of Applicable Taxes (as defined below). Except
for taxes or surcharges based on the Town's corporate existence, status, net income,
corporate property taxes, or payroll taxes, User will be responsible for all Applicable
Taxes that arise in any jurisdiction, including, without limitation, consumption, sales,
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use, gross receipts (except those in lieu of income taxes), excise or other taxes, fees,
charges or surcharges, however designated, imposed on, incident to, or based upon
the provision, sale, or use of the Conduit (collectively "Applicable Taxes"). The Town
represents that it has paid all applicable sales or use tax with respect to the Conduit
on the basis that the Conduit was incorporated in real property at the time it was
installed in the Town's system, and the Parties agree to treat the transactions
contemplated in this Agreement in a manner consistent with that position. User shall
pay and be solely responsible for any state or local transfer taxes and sales taxes
arising from the transactions contemplated by this Agreement, and shall indemnify
the Town for all such taxes assessed against or paid by the Town.
4. Term, renewal, and termination. The term of this Agreement shall be for a period of
five years beginning on the Effective Date (the "Initial Term"). Upon the expiration of
the Initial Term, this Agreement may be renewed for successive five-year periods (each a
"Renewal Term") upon the written agreement of the Parties. Upon the expiration of the
Initial Term, either Party may terminate this Agreement during any Renewal Term upon
180 days' prior written notice. Any Renewal Term is subject to an increased per foot rate,
to be negotiated and agreed upon by the Parties.
5. Ownership. The Conduit shall remain the property of the Town and will never be
deemed a fixture to any real property owned by User or any third party. The Town and
User will each retain title to all of their respective equipment, cable, electronics and
facilities used in connection with this Agreement.
6. As -built plans. No later than 10 days after the Effective Date of this Agreement, the
Town will provide User with CADD as -built plans that include the Conduit. No later
than 30 days after each installation of User facilities in the Conduit, User will provide the
Town with CADD as -built plans of all User facilities placed in the public right-of-way.
7. Testing and acceptance. The Town does not guarantee that the condition of the
Conduit is acceptable for User's purposes. User shall have 10 days after being notified by
the Town that Conduit is ready for acceptance inspection to inspect, accept or reject the
Conduit (hereinafter "Inspection Period"). User will perform such tests as it deems
necessary to determine the acceptability of the Conduit for its intended use. All testing
shall be at the sole cost of User. If, based on the sole determination of the User, the
Conduit is deemed unacceptable, the Town will assign, where available, different
Conduit to the User. If any Conduit made available to User along a Route fails to meet
User's acceptance criteria, User shall be entitled, at User's sole discretion, to either (i)
repair the unacceptable Conduit, at User's sole cost and expense, or (ii) reject the affected
portion of Conduit and be released from any further related obligations without affecting
other rights granted by this Agreement, or (iii) terminate this Agreement and be released
from any further obligations under the Agreement. The "Acceptance Date" shall be (i)
the date User notifies the Town in writing that it has accepted the Conduit, or (ii) if User
fails to respond within the Inspection Period, the date following expiration of the
Inspection Period.
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8. General obligations. Each Party is responsible for the safety and health of its
employees, agents, and contractors while working on the Conduit, or the facilities
installation pursuant to this Agreement. Each Party shall comply with all applicable rules
and regulations, as well as all local, state and federal environmental, health and safety
requirements, including without limitation those relating to the use and handling of
hazardous materials.
9. Permits. User shall be responsible for obtaining all applicable permits, licenses, or
other forms of approval or authorization necessary to install its facilities in the Conduit,
prior to installation. This includes User's obligation to obtain a right-of-way use permit
pursuant to Marana Town Code Chapter 12-7 (construction in town rights-of-way) each
time User or its contractor installs, replaces, or maintains its facilities in the Conduit.
10. User's Facilities. User shall be responsible for ownership, maintenance, and
operation of its Facilities installed in the Conduit and for compliance with all applicable
laws and regulations regulating the same. User shall at all times retain exclusive right,
title, and interest in the Facilities or any other Equipment installed by User pursuant to
this Agreement.
11. Maintenance and repair. User, its agents or subcontractor may perform industry
standard maintenance, locates and repairs for the Conduit to ensure proper protection
and functioning of the Conduit, subject to all permits and authorizations required by
applicable law, to be secured at User's sole expense. User shall bear all costs associated
with industry standard maintenance, locates and repairs of the Conduit during the Term
of this Agreement.
12. Abandonment.
a. The Town may give User permission to abandon, without removing, any
Facility or Equipment laid, directly constructed, operated, or maintained pursuant to
this Agreement.
b. Except for Facilities and Equipment authorized to remain in place pursuant to
the preceding subparagraph, User shall, within a reasonable period of time, remove
all abandoned Facilities and Equipment and shall restore any affected right-of-way to
its former state at the time the Facilities and Equipment were installed.
c. User shall refill, at its own expense, any excavation made by User and shall leave
all right-of-way in as good condition as existed prior to the removal without
materially interfering with any electrical or telephone cable or other utility wires,
poles or attachments.
d. The Town shall have the right to inspect and approve the condition of the
Facilities and the public right-of-way prior to and after removal.
e. The liability, indemnity and insurance provisions of this Agreement shall
continue in full force and effect during the period of removal and until full compliance
with the terms and conditions of this paragraph 12.
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f. Upon User's abandonment of its Facilities pursuant to this paragraph 12, the
exclusive right to use the Conduit is returned to the Town.
13. Removal of User's Equipment. If the Town is required or desires to remove any of
the Conduit, the Town agrees to provide User not less than 60 calendar days' prior
written notice of such removal. Upon receipt of the notice, User shall have 45 calendar
days to remove all Equipment from the affected use area. User shall be entitled, at User's
sole discretion, to either terminate the Conduit Request(s) covering the affected portion
of Conduit and be released from any further obligations related thereto without affecting
other rights granted in paragraph 2 above, or to terminate this Agreement as provided in
paragraph 4 above.
14. No franchise or license. This Agreement is not intended by the Parties to be a license
or franchise to operate in the public right-of-way under A.R.S. §§ 9-582 and 9-583 and
federal telecommunications laws and rules and under no circumstances shall the access
granted to User under this Agreement be construed as the grant of a license or franchise
to operate in the public right-of-way.
15. Insurance. User shall maintain insurance with carriers acceptable to the Town
throughout the term of this Agreement with the following required minimum coverages
and limits:
Workers' Compensation Statutory
Employer's Liability U.S. $100,000
Commercial General Liability U.S. $1,000,000 per occurrence
U.S. $2,000,000 aggregate
Business Auto Liability U.S. $1,000,000 combined single limit
a. User shall deliver one or more certificates of insurance evidencing coverage as
described in this paragraph to the Town upon execution of this Agreement, prior to
commencing any work pursuant to this Agreement. User shall also deliver new
certificates of insurance each time the policy(s) is updated. All certificates shall be
delivered to: Town of Marana, Attn: Legal Department, 11555 W. Civic Center Drive,
Marana, Arizona 85653.
b. The Town shall be named as an additional insured on the required commercial
general liability insurance policies.. As an additional insured, the Town shall be
provided coverage for any liability arising out of operations performed in whole or in
part by or on behalf of User. User shall deliver additional insured endorsement(s)
along with the required certificate(s) of insurance. The additional insured
endorsement form identification number shall also be included within the description
box on the certificate of insurance and/or the applicable policy number shall be
included on the endorsement.
c. All policies required pursuant to this paragraph shall be endorsed to contain a
waiver of transfer of rights of recovery (subrogation) against the Town, its agents,
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officers, officials, and employees for any claims arising out of User's work or service.
Endorsements evidencing this waiver of subrogation shall be provided to the Town
along with all other insurance documentation required by this paragraph.
d. The coverage requirements specified in this paragraph may not be changed or
modified except by written agreement signed by the Parties.
e. User shall give the Town at least 30 calendar days' written notice prior to a
planned cancellation or reduction of any coverage required by this paragraph. User
shall give the Town immediate notice of any other cancellation or reduction of any
coverage required by this paragraph. Cancellation or reduction of any coverage
required by this paragraph is grounds for termination of this Agreement by the Town.
16. Limitation of liability. Except for User's indemnification obligations (see paragraph
17 below), neither Party is liable for any consequential, incidental, indirect, punitive or
special damages, including commercial loss and lost profits, however caused and
regardless of legal theory or foreseeability, directly or indirectly arising in connection
with this Agreement, even if the Party has been apprised of the possibility of such
damages. User shall not be entitled to compensation of any kind (including without
limitation actual or consequential damages) if for any reason the Conduit is blocked or
unusable, other than reimbursement of the consideration set forth in paragraph 3 above
and the governmental fees actually paid by or on behalf of User for any permits
associated with its work (see paragraph 9 above).
17. Indemnification. User agrees to indemnify, save and hold harmless, and defend the
Town, its elected and appointed officials, officers, employees, and permitted successors
and assigns, from and against any liability for damages and for any liability or claims
resulting from property damage or bodily injury (including accidental death), which arise
out of User's acts or omissions in the construction, operation, or maintenance of its
Facilities pursuant to this Agreement, provided that the Town shall give User written
notice of its obligation to indemnify the Town within 30 days of receipt of a claim or
action pursuant to this subsection. Notwithstanding the foregoing, User shall not
indemnify the Town for any damages, liability or claims resulting from the willful
misconduct or negligence of the Town.
18. Cooperation and alternative dispute resolution.
a. Non-performance; remedies. If any Party does not perform under this Agreement
(the "Non -Performing Party") with respect to any of that Party's obligations under
this Agreement, any other Party (the "Demanding Party") shall be entitled to give
written notice in the manner prescribed in paragraph 19 below to the Non -Performing
Party, which notice shall state the nature of the non-performance claimed and make
demand that such non-performance be corrected. The Non -Performing Party shall
then have (i)15 days from the date of the notice within which to correct the non-
performance if it can reasonably be corrected by the payment of money, or (ii) 30 days
from the date of the notice to cure the non-performance if action other than the
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payment of money is reasonably required, or if the non -monetary non-performance
cannot reasonably be cured within 30 days, then such longer period as may be
reasonably required, provided and so long as the cure is promptly commenced within
30 days and thereafter diligently prosecuted to completion. If any non-performance is
not cured within the applicable time period set forth in this paragraph, then the
Demanding Party shall be entitled to begin the mediation and arbitration proceedings
set forth in this paragraph. This paragraph shall not limit any contract or other rights,
remedies, or causes of action that any Party may have at law or in equity.
b. Mediation. If there is a dispute under this Agreement which the Parties cannot
resolve between themselves, the Parties agree that there shall be a 45 -day moratorium
on arbitration during which time the Parties agree to attempt to settle the dispute by
nonbinding mediation before commencement of arbitration. The mediation shall be
held under the commercial mediation rules of the American Arbitration Association.
The matter in dispute shall be submitted to a mediator mutually selected by User and
the Town. If the Parties cannot agree upon the selection of a mediator within seven
days, then within three days thereafter the Town and User shall request the presiding
judge of the Superior Court in and for the County of Pima, State of Arizona, to appoint
an independent mediator. The mediator selected shall have at least five years'
experience in mediating or arbitrating disputes relating to construction. The cost of
any such mediation shall be divided equally between the Town and User. The results
of the mediation shall be nonbinding on the Parties, and any Party shall be free to
initiate arbitration after the moratorium.
c. Arbitration. After mediation, as provided for in subparagraph 18.b above18.b
above, any dispute, controversy, claim or cause of action arising out of or relating to
this Agreement shall be settled by submission of the matter by both Parties to binding
arbitration in accordance with the rules of the American Arbitration Association and
the Arizona Uniform Arbitration Act, A.R.S. § 12-501 et seq., and judgment upon the
award rendered by the arbitrator(s) may be entered in a court having jurisdiction.
19. Notice. All notices shall be in writing and shall be sufficiently given and served
upon the other Party by electronic mail, receipt of which has been acknowledged by the
other Party, or by hand delivery, first class mail, registered or certified, return receipt
requested, postage prepaid, or by reputable overnight courier service and addressed as
follows:
To the Town:
Town of Marana
Attn: Town Manager
11555 W. Civic Center Dr.
Marana, AZ 85653
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with a copy to:
Town of Marana
Attn: Town Attorney
11555 W. Civic Center Dr.
Marana, AZ 85653
To User:
FirstDigital Telecom Arizona, LLC
Attn: Jere Christensen, City Operations Director
3836 S. Evans Blvd.
Tucson, AZ 85714
20. Force majeure. Neither Party shall be deemed to be in. breach of this Agreement
during any period of time in which it is unable to perform its obligations as a result of the
occurrence of an event of force majeure, which shall include, but not be limited to, acts of
God, act or order of government, denial or access to or loss of utility service or facilities
or any other circumstance beyond the reasonable control and not caused by the fault or
negligence of the Party claiming force majeure. The required time for performance under
this Agreement by the Party claiming force majeure shall be extended to account for any
such force majeure event and the Party claiming force majeure shall use diligence to
resume or remedy, as the case may be, the performance of its obligations under this
agreement as soon as practicable.
21. Entire agreement. This Agreement embodies the entire understanding and
agreement of the Town and User with respect to the subject matter hereof and supersedes
all prior understandings, agreements and communications, whether written or oral.
22. Severability. If any section, subsection, sentence, clause, phrase, or other portion of
this Agreement is, for any reason, declared invalid, in whole or in part, by any court,
agency, commission, legislative body, or other authority of competent jurisdiction, the
portion declared invalid shall be deemed a separate, distinct, and independent portion
and shall not affect the validity of the remaining portions of this Agreement, which shall
continue in full force and effect.
23. Governing law. This Agreement shall be deemed to be executed in the State of
Arizona and shall be governed in all respects, including validity, interpretation and
effect, and construed in accordance with, the laws of the State of Arizona, as applicable
to contracts entered into and performed entirely within the State of Arizona.
24. Venue. Any lawsuit or other proceeding to enforce any provision of this
Agreement or to obtain any remedy with respect to this Agreement shall be brought in
the Pima County Superior Court, and for this purpose the Parties expressly and
irrevocably consent to the jurisdiction of the Pima County Superior Court. Nothing in
this paragraph is intended to modify or negate the Parties' obligation to settle disputes
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under this Agreement by mediation and arbitration as more particularly described in
paragraph 18 above.
25. Modification. No provision of this Agreement shall be amended or otherwise
modified, in whole or in part, except by an instrument, in writing, duly executed by the
Town and User, and authorized on behalf of the Town through the adoption of an
appropriate resolution or action by the Town.
26. No third -party beneficiaries. Nothing in this Agreement is intended to confer third -
party beneficiary status on any member of the public to enforce the terms of this
Agreement.
27. Conflict of interest. This Agreement is subject to the provisions of A.R.S. § 38-511,
which provides for cancellation of contract in certain instances involving conflict of
interest.
28. Assignment. The rights and obligations of each Party are binding upon and inure
to the benefit of its successors and permitted assigns. Neither Party may assign this
Agreement, without the express written consent of the other Party, except that User, upon
30 days' written notice to the Town, may assign its rights and obligations under this
Agreement without the Town's consent to any of the following:
a. A parent, affiliate, or subsidiary of User.
b. The surviving entity of a merger or consolidation of User.
c. Any entity that acquires all or substantially all of the assets of User to which this
Agreement relates.
29. Automatic termination. Unless otherwise agreed to in writing signed by the Parties,
this Agreement shall automatically terminate if User fails to timely pay the consideration
required by paragraph 3 above.
30. Effective date. This Agreement is effective on the date of the last Party's signature
below (the "Effective Date").
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IN WITNESS WHEREOF, this Agreement has been executed by the duly authorized
representatives of the Parties as set forth below, as of the date set forth below.
The "Town":
"User":
TOWN OF MARANA, anrizona municipal FIRSTDIG AAL TELECOM ARIZONA, LLC, a
corporatiorp I Utah limited liability company
In
Ed Honed, Mayor
11 Date: q I � — Z. -'o
VLUIF/
W.".. 0 0 0 d I m,,,00 'R'W'
wson, Town
APPROV S TO FORM:
i
0
ran)( assidy, Town Attorney
STATE OFj)-TA-q )
) ss.
County of 4-4",t (AM )
By: FIRSTDIGITAL TELECOM, LLC, a
Utah limited liability company, its
Member
r
By: !'L
esley J. McDougal
President & CEO
Date: ' '3) 2-1=
The foregoing instrument was acknowledged before me this =r day
of _�I p�y� j i , 2020, by Wesley J. McDougal, President & CEO for FIRSTDIGITAL
TELECOM, LLC, a Utah limited liability company, Member o _ FIRSTDIGITAL TELECOM
ARIZONA, LLC, a Utah limited liability company, on beh of e LL
(Se "' TEARA BRYAN
NOTARY PUBLIC -STATE OF UTAH N y P 1c
My Cann. Exp 07/02/2023
Commission # 707029
STATE OF ARIZONA )
)ss.
County of Pima )
The foregoing instrument was acknowledged before me this O day
Of 0_-'. J 2020, by Ed Honea, Mayor of the TOWN OF MARANA, an Arizona
munic pal corporation, on its behalf.
(Seal) Suzanne Sutherland
- Notary Public
������''�,�,���JJ Pima County, Arizona Notary Public
:, �SY;� My Comm. Expires 09-11-2022 Y
Commission No. 551302 0
00068490.DOCX /1 3/9/202010:48 AM
TOWN OF MARANA/FIRSTDIGITAL TELECOM ARIZONA, LLC MASTER CONDUIT USE AGREEMENT
-12-
Exhibit A to Master Conduit Use Agreement
Form of
Conduit Request #
This document constitutes a "Conduit Request" pursuant to that certain Master Conduit
Use Agreement (the "Agreement") entered into by and between the Town of Marana, an
Arizona municipal corporation (the "Town"), and FirstDigital Telecom Arizona, LLC, a
Utah limited liability company ("User") on , 2020. This Conduit
Request is hereby incorporated into the Agreement and is expressly made subject to all
of the terms and conditions set forth in the Agreement. To the extent that there is any
inconsistency between the Agreement and this Conduit Request, the Agreement shall
control except as expressly provided herein to the contrary. Capitalized terms used in
this Conduit Request shall have the same meanings set forth in the Agreement, unless
the context requires otherwise. The effective date of this Conduit Request shall be the
date of the last signature by the Parties.
Upon execution of this Conduit Request by both Parties, and subject to the provisions of
the Agreement, the Town hereby grants to User, and User hereby accepts from the Town,
a non-exclusive right to access and use the Additional Conduit described in Section A of
this Conduit Request.
Section A
Additional Conduit
1. The Additional Conduit shall follow a Route as generally depicted on the map
attached to this Conduit Order as Attachment 1. The Additional Conduit shall
begin and end at the Connected Points described in Table A.1 below.
2. The total aggregate length of the Additional Conduit is feet.
Table A.1
Route
Starting Connected Point
Ending Connected Point
Conduit
Footage
1
2
3
00068490.DOCX /1 3/9/202010:48 AM
TOWN OF MARANA/FIRSTDIGITAL TELECOM ARIZONA, LLC MASTER CONDUIT USE AGREEMENT
-13-
Section B
Delivery Date; General
1. The Town shall make ready the Additional Conduit and notify User, in writing,
of its availability for acceptance inspection by , 20.
2. This Conduit Request may be executed via facsimile and in multiple
counterparts, each of which when taken together shall constitute one and the
same document.
In confirmation of their consent and agreement to the terms and conditions
contained in this Conduit Request, and intending to be legally bound by this Conduit
Request, the Parties have executed this Conduit Request on the dates set forth below.
"'Town":
Town of Marana
By:
Name:
Title:
Date:
By:
Name:
Title:
Date:
""User":
FirstDigital Telecom Arizona, LLC
By:
Nam
Title:
Date
00068490.DOCX /1 3/9/202010:48 AM
TOWN OF MARANA/FIRSTDIGITAL TELECOM ARIZONA, LLC MASTER CONDUIT USE AGREEMENT
-14-
Attachment 1 to Conduit Order #
Map of Additional Conduit
00068490.DOCX /1 3/9/202010:48 AM
TOWN OF MARANA/FIRSTDIGITAL TELECOM ARIZONA, LLC MASTER CONDUIT USE AGREEMENT
-15-
Exhibit B to Master Conduit Use Agreement
Conduit Request #1
This document constitutes a "Conduit Request" pursuant to that certain Master Conduit
Use Agreement (the "Agreement") entered into by and between the Town of Marana, an
Arizona municipal corporation (the "Town"), and FirstDigital Telecom Arizona, LLC, a
Utah limited liability company ("User") on '/--/b —2v &o , 2020. This Conduit
Request is hereby incorporated into the Agreement and is expressly made subject to all
of the terms and conditions set forth in the Agreement. To the extent that there is any
inconsistency between the Agreement and this Conduit Request, the Agreement shall
control except as expressly provided herein to the contrary. Capitalized terms used in
this Conduit Request shall have the same meanings set forth in the Agreement, unless
the context requires otherwise. The effective date of this Conduit Request shall be the
date of the last signature by the Parties.
Upon execution of this Conduit Request by both Parties, and subject to the provisions of
the Agreement, the Town hereby grants to User, and User hereby accepts from the Town,
a non-exclusive right to access and use the Additional Conduit described in Section A of
this Conduit Request.
Section A
Additional Conduit
3. The Additional Conduit shall follow a Route as generally depicted on the map
attached to this Conduit Order as Attachment 1. The Additional Conduit shall
begin and end at the Connected Points described in Table A.1 below.
4. The total aggregate length of the Additional Conduit is 351 feet.
Table A.1
Route
Starting Connected Point
Ending Connected Point
Conduit
Footage
Southwest corner of Tangerine
Northeast corner of Tangerine
351'
Rd. & Thornydale Rd., Sta:
Rd. & Thornydale Rd., Sta:
(Conduit
1
803+82, 78' Rt., Marana Proj.
805+68, 84' Lt., Marana Proj.
Run 16 and
ST021, Sheet 484, #7 Pullbox.
ST021, Sheet 484, #7 Pullbox.
14).
2
3
00068490.DOCX /1 3/9/202010:48 AM
TOWN OF MARANA/FIRSTDIGITAL TELECOM ARIZONA, LLC MASTER CONDUIT USE AGREEMENT
-16-
Section B
Delivery Date; General
3. The Town shall make ready the Additional Conduit and notify User, in writing,
of its availability for acceptance inspection by , 20 .
4. This Conduit Request may be executed via facsimile and in multiple
counterparts, each of which when taken together shall constitute one and the
same document.
In confirmation of their consent and agreement to the terms and conditions
contained in this Conduit Request, and intending to be legally bound by this Conduit
Request, the Parties have executed this Conduit Request on the dates set forth below.
"'Town":
Town of Marana
By:
Name:
Title:
Date:
By:
Name:
Title:
Date:
"User":
FirstDigital Telecom Arizona, LLC
By:
Nam,
Title:
Date:
00068490.DOCX /1 3/9/202010:48 AM
TOWN OF MARANA/FIRSTDIGITAL TELECOM ARIZONA, LLC MASTER CONDUIT USE AGREEMENT
-17-
Attachment 1 to Conduit Order #1
Map of Additional Conduit
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00068490.DOCX /1 3/9/202010:48 AM
TOWN OF MARANA/FIRSTDIGITAL TELECOM ARIZONA, LLC MASTER CONDUIT USE AGREEMENT
-18-
FIRSTDIGITAL
90 South 400 West, Suite M-100, Salt Lake City, Utah 84101
03/09/2020
To Whom It May Concern:
Jere Christensen is authorized to sign conduit requests on behalf of FirstDigital issued under the
Master Conduit Use Agreement between the Town of Marana and a FirstDigital.
Sincerely,
11�--e
Wesley J. McDougal
President & CEO
VOICE - DATA - INTERNET - CO -LOCATION
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana,
Arizona, this 3rd day of March, 2020.
ATTEST:
Cherry L. Law n, Town Clerk
Mayor Ed Honea
APPROVE AS TO FORM:
i
ra c Cas y, Town At rney
00068281.DOCX /1
Marana Resolution No. 2020-026 - 2 - 3/2/2020 4:35 PM